Many people believe that a DUI charge only applies to driving under the influence. However, Colorado law goes further with the actual physical control (APC) concept. Understanding APC is crucial to navigating DUI cases, as it can mean the difference between a carefree evening and facing criminal charges. In the following sections, we’ll answer the question, What does physical control mean? We’ll also address how it applies in DUI cases.
The Importance of Understanding Actual Physical Control
Imagine this scenario: You’ve enjoyed a few drinks with friends and decide it’s unsafe to drive. You choose to sleep it off in your car that’s parked nearby. While you believe you’re making a responsible decision, Colorado law might have a different perspective.
Unlike some states, Colorado allows an officer to levy DUI charges even if the vehicle is not moving. This is because Colorado law recognizes the potential danger posed by an intoxicated individual behind the wheel, regardless of whether the car is moving.
What Is Actual Physical Control?
Colorado law defines a DUI as driving under the influence or driving while your ability to drive is impaired (DWAI). You can get either of these charges while in actual physical control of a motor vehicle—and this applies whether the car is in motion or not.
The focus is on whether you have the current capability to operate the car, even if you are not actually driving it. In other words, if you have the present ability or potential to exert bodily influence or direction over a motor vehicle, you are in actual physical control. Put another way, your ability to start the car and drive away while under the influence means you have actual physical control, and an officer can charge you with a crime.
Key Factors in Determining Actual Physical Control
Courts evaluate specific factors to determine if someone had actual physical control over the vehicle. This set of factors—known as the Swain factors—includes:
- Location of the vehicle. Was the car parked on a public roadway, a private driveway, or somewhere else entirely? A car parked on a public road suggests a greater likelihood of attempting to drive while impaired.
- Location of the person. Were you found in the driver’s seat, passenger seat, or trunk? Being behind the wheel, especially with the keys readily accessible, is a strong indicator of control.
- Location of the keys. Were the keys in the ignition, in your possession, or elsewhere? Having the keys readily available suggests the intent to drive.
- Vehicle condition. Was the car running or inoperable? A running vehicle with the keys nearby increases the possibility of driving under the influence.
- Other circumstances. This includes statements made to officers, efforts to start the car, or reports from witnesses.
It’s important to note that there isn’t a single factor that decides the issue. Instead, courts will weigh all these factors to determine whether you had actual physical control of the vehicle.
Defense Strategies Against a Claim of Actual Physical Control
While facing a DUI or DWAI charge involving physical control can be stressful, you have potential defenses to consider. Here are some examples:
- You had no intention to drive—if you were in the back seat after drinking without any intention of driving, your attorney can challenge the prosecution’s case;
- The vehicle was inoperable—this can be a strong defense if it had a flat tire, a dead battery, or another issue preventing you from driving the car; and
- You weren’t in control of the keys—if the keys were hidden or not readily accessible, it weakens the prosecution’s argument that you had the ability to operate the vehicle.
Consulting with an experienced DUI attorney is essential to explore the facts and build a strong defense strategy.
Frequently Asked Questions (FAQs)
What Is a Physical Control Charge?
Colorado does not have a separate actual physical control charge. Instead, APC is an element used to prove a DUI or DWAI.
What Is the Difference Between APC and a DUI Charge?
A DUI charge requires actual driving under the influence, while an APC is an element of a DUI or DWAI that focuses on whether you had the present ability to drive while intoxicated. Law enforcement may charge you with either a DUI or a DWAI, depending on the circumstances.
What Are the Potential Penalties for DUI Charges in Colorado?
A conviction can result in severe penalties, such as license suspension, substantial fines, and possible incarceration. The severity depends on factors like your prior offenses and blood alcohol content (BAC) level.
How Can A DUI Charge Affect My Driving Record?
A conviction will add points to your license and stay on your driving record for an extended period, making obtaining car insurance harder and more expensive. It can also increase your penalties if you get a subsequent DUI or DWAI charge in the future. Additionally, a conviction for driving under the influence can limit job prospects, particularly for roles that involve driving.
What Should I Do If I’m Facing a DUI Charge Based upon APC ?
Don’t handle a DUI charge involving DUI / APC alone. Avoid speaking with police and contact an experienced DUI attorney. Working with an attorney increases the chances of getting your charge reduced or dismissed.
Can You Seal a Conviction from Your Record In Colorado?
In Colorado, DUI-related charges can be sealed only if the matter is dismissed, for instance as a result of successfully completing a Deferred Judgment and Sentence. The law thus allows for record sealing, making the crime invisible to public background checks. However, prosecutors and law enforcement can still access the sealed record.
Contact Mark S. Rubinstein, P.C., for Your DUI Defense
Western Slope-based Mark S. Rubinstein, P.C., has a decades-long track record of success defending DUI cases, including those related to actual physical control. Beyond legal expertise, our firm is deeply invested in the Colorado community. We are dedicated to safeguarding citizens’ rights and ensuring equitable treatment under the law.
We understand the significant consequences a DUI conviction can have on your life, and we’re committed to fighting aggressively on your behalf. Contact us today for a free consultation. We’ll assess your case and discuss potential defense strategies. You have rights, and we’re here to help you protect them.
